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Part 1: 2012: Background. Stealth
nature of the amendment. Support.

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Background:

Most states that have not yet legalized same-sex marriage (SSM) have marriage laws on their books that restrict marriage only to a union of one woman and one man. About thirty states have gone further: They have amended their state constitutions to reinforce the existing "one woman, one man" marriage legislation. This puts the latter beyond the power of either the Legislature or the state courts to modify.

As of early 2012, all but one of the Southern states had such an amendment in place. The exception was North Carolina. Although its family law act currently restricts marriage to one man and one woman, that legislation could conceivably be changed by the Legislature at any time in the future. Religious and social conservatives felt that an amendment to the state Constitution was required to take that authority away from the state Legislature and state courts.

In the fall of 2012, a bill was voted upon in the NC Legislature to initiate an amendment to the state constitution. The House passed the enabling bill 75 to 42; the Senate passed it 30 to 16. 1 It was confirmed by the public on 2012-MAY-08.

The voters will be asked to vote on whether they were in favor, or opposed to a:

"Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State."

The proposed amendment would add Section 6 to the North Carolina Constitution that states:"

"Sec. 6. Marriage. Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts." 2

The Constitutional Amendments Publication Commission in North Carolina states:

"A current North Carolina law enacted in 1996 says that marriage between individuals of the same sex is not valid in North Carolina. This amendment would make that concept part of the North Carolina Constitution. If this amendment is passed by the voters, then under state law it can only be changed by another vote of the people.

The term “domestic legal union” used in the amendment is not defined in North Carolina law. There is debate among legal experts about how this proposed constitutional amendment may impact North Carolina law as it relates to unmarried couples of same or opposite sex and same sex couples legally married in another state, particularly in regard to employment-related benefits for domestic partners; domestic violence laws; child custody and visitation rights; and end-of-life arrangements. The courts will ultimately make those decisions.

The amendment also says that private parties may still enter into contracts creating rights enforceable against each other. This means that unmarried persons, businesses and other private parties may be able to enter into agreements establishing personal rights, responsibilities, or benefits as to each other. The courts will decide the extent to which such contracts can be enforced. 2

Note that this statement did not reveal that the scope of the amendment would go far beyond banning same-sex marriages and would also ban civil unions and domestic partnerships. Yet it is the prime responsibility of this Commission to clearly explain amendments to the voters.

Voters were able to request an absentee by mail ballot, starting on 2012-MAR-19; they were able to vote from APR-19 to MAY-01.

Primary election day was MAY-08. Polls closed at 7:30 PM local time. By 9:30, it was clear that the amendment passed by a vote of about 60% to 40%.

This amendment was promoted as permanently restricting marriage in the state to one man and one woman. That is not really accurate. At some time in the future, two new amendments to the constitution could be authorized by the Legislature: one to repeal the 2012 amendment, and another to allow same-sex couples to marry.

The stealth nature of the NC amendment:

Many states have amended their constitutions to ban same-sex marriages. Most simply defined marriage in the state as a union of one man and one women. However, during the 2000's, two states added stealth amendments to their constitution: changes that were sold to the public as a simple SSM ban, but which in reality have a much wider scope. They were South Carolina (passed in 2006) and Idaho (passed in 2007).

The South Carolina Amendment states that a:

"... marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized." 6

It also bars the State and its political subdivisions from

"... respecting any other domestic union, however denominated." 6

The Idaho Amendment is very similar to that of South Carolina:

"Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state." 7

The North Carolina Amendment is identical to that of Idaho.

Although the North Carolina Amendment was promoted as a simple measure to prevent the legalization of same-sex marriages, that is not what the amendment actually says, and it is not what the amendment would actually do. It would certainly ban same-sex marriages. However, it would also prohibit any form of recognition of loving, committed relationships between both opposite-sex couples and same-sex couples, including civil unions, and domestic partnerships. Couples who are not married would be regarded as "legal strangers" to each other. They and their children would lack protections under law for the simple reason that the state would not be able to recognize their relationship as anything other than roommates who happened to occupy the same living space.

As of early 2012, the state courts in South Carolina and Idaho have not yet interpreted the scope of their amendments and thus cannot give any guidance as to the effect that the North Carolina amendment will have on the people in that state. A report compiled by legal experts from the University of North Carolina states:

"The phrase 'domestic legal union' has never been used before in North Carolina, or interpreted in North Carolina courts. This vague and untested language could be interpreted to prohibit giving legal effect to any relationships aside from heterosexual marriage. In doing so, the proposed Amendment would harm a broad range of North Carolinians in both same-sex and opposite-sex relationships, and potentially affect even more citizens from other states. ..."

"Couples who cohabitate are increasingly diverse, including young couples who delay marriage, as well as older couples who have been previously married and are hesitant to remarry. Young couples, middle-aged couples with children, and elderly couples who have chosen not to marry all may be affected by the Amendment."

"Given the vague and untested language of the Amendment, it could take years to clarify its implications. The resulting uncertainty could cast a pall of uncertainty over North Carolina’s legal system, discourage same-sex and opposite-sex unmarried couples from living and working in North Carolina, adversely affect North Carolina employers’ efforts to attract talented employees, and encourage individuals seeking to avoid their legal obligations to flock to North Carolina’s courts for relief." 8

The groups that have been promoting this amendment for years have not described its wide-ranging nature. Unfortunately, the media seems to have also fallen down on its obligation to inform the public of the true nature of the proposed amendment. Most adults in the states seem to believe it is merely a simple anti-SSM amendment like the one that will be voted upon in Minnesota during 2012-NOV.

An article posted in the opinion section in the Charlotte Observer stated:

"State law already bans gay marriage, and that’s not changing anytime soon. Voters in May will not decide whether to legalize gay marriage or not. Rather, they will decide whether to cement that ban into the state constitution, plus expand it to block civil unions of any kind, gay or straight. The amendment appears to endanger all unmarried couples with regard to domestic-partner benefits, domestic violence laws, child custody and end-of-life arrangements. The courts would be forced to untangle that.

While polls show the public supports the amendment, there is hope for opponents. Public Policy Polling in Raleigh found that the vote gets closer when people understand what it does. In a poll late last month, PPP found 58 percent support the amendment while 38 percent oppose it. But only 31 percent know it bans both gay marriage and civil unions; 28 percent think it bans only gay marriage, 7 percent think it legalizes gay marriage and 34 percent say they don’t know exactly what it does. Told that it also bans civil unions, the vote becomes a dead heat." 3 [Emphasis ours]

A poll by Elon University was conducted during 2012-MAR-26 to MAR-29 among 534 adult North Carolina residents. The margin of error is ±4.2 percentage points. Data was released on 2012-APR-02. Results showed that:

38% would support same-sex marriage; that is an increase from 36% in 2012-FEB, and 33% in 2011-NOV.

29% would support civil unions or partnerships, but not full marriage rights; that is an increase from 28% in 2012-FEB and 26% in 2011-NOV.

29% would oppose any recognition of same-sex relationships. This is a decrease from 32% in 2012-FEB and from 35% in 2011-NOV. 4

John Robinson, director of communications for the Elon University Poll said:

"These results reflect what’s occurring nationwide. Opposition to any legal recognition for same-sex couples has been on the decline for a year and support for full marriage rights has been increasing. Our results suggest that the majority of North Carolinians do not want same-sex marriages [civil unions,] and domestic partnerships banned in the state constitution. Further, it appears that citizens support at least some kind of legal recognition for same-sex couples, either civil unions or marriages." 4

Thus, as of 2012-MAR, North Carolina residents are opposed to what Amendment 1 would accomplish -- they are about 2:1 against the intent of Amendment 1.

Previous polls conducted by Elon University show that support for an amendment that would bar same-sex marriage, civil unions, and domestic partnerships has dropped about 10 percentage points and opposition has increased by a similar amount since their polling started on this topic in 2009-MAR: 5

Elon University polling data:

When asked whether they would like to see same-sex marriages and civil unions and domestic partnerships all banned, results were:

Date, middle of the poll

In favor

Opposed

Undecided

Number of persons polled

Margin of error in percentage points

2009-MAR-17

43%

50%

5%

620

±3.9

2011-FEB-22

38

56

5

467

4.5

2011-SEP-27

39

56

5

594

4.0

2011-NOV-01

37

57

6

529

4.3

2012-MAR-27

32

61

6

534

4.2

However, the Elon University polls in no way predict the outcome of the actual poll. It doesn't really matter that the people of North Carolina are overwhelmingly opposed to the effect that Amendment 1 will have on their culture. What does matter is whether they were going to be able to make an intelligent choice at the ballot box. That requires that they realized in advance what Amendment 1 will actually accomplish. They seem to be uninformed, misinformed and/or disinformed about the Amendment.

They seem to believe that the amendment would simply ban same-sex marriage. One indication of this is the following series of polls. They asked directly whether the person is in favor of Amendment 1. :

Polls by National Research Inc, and Public Policy Polling:

Date, middle of the poll

Polling agency

In favor

Opposed

Undecided

Number of persons polled

Margin of error in percentage points

2011-AUG-16

National Research

49%

43%

7%

400

±4.9

2011-OCT-01

Public Policy Polling

61

34

5

760

3.6

2011-OCT-29

Public Policy Polling

59

35

6

615

4.0

2011-DEC-02

Public Policy Polling

58

32

10

865

3.3

2012-JAN-06

Public Policy Polling

56

34

10

780

3.5

2012-APR-21

Public Policy Polling

54

40

6

1,139

2.9

As a growing minority of adults in the state realized that they were being deceived, support for the amendment dropped. But lack of knowledge of the full scope of the amendment was still strong on voting day 2012-MAY-08. The amendment passed by about 60% to 40% -- close to the most recent polling data above.

One wonders what will happen when the people of North Carolina realize that they voted against their own wishes. There might be a tremendous backlash.

Support for the amendment:

Tami Fitzgerald, executive director of N.C. Values Coalition, argues that placing the amendment is the "right thing to do" and it fulfills the democratic process by allowing everybody to vote. Fitzgerald adds, "The people of North Carolina want to determine for themselves how they want to define marriage. They don’t want activist judges doing it for them." 1

According to Vote for Marriage NC, Amendment One is supported by:

19 country Boards of Commissioners,

41 organizations, essentially all of which are conservative Christian or Republican groups.

46 church leaders, essentially of of whom are Baptist.

One wonders how many of these individuals and organizations are aware of the true nature and scope of this stealth amendment.

Unfortunately, allowing the people to vote on an amendment first requires that they know about the implications of their vote. This did not happen in North Carolina.

References used:

The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today."North Carolina Same-Sex Marriage, Amendment 1 (May 2012)," Ballotpeia, at: http://www.ballotpedia.org/

"Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution," American Civil Liberties Association of North Carolina, 2011-JUN-06, at: http://www.acluofnc.org/ This is a PDF file.